As social media platforms continue to shape communication and public debate, legal questions about their regulation and First Amendment protections have become increasingly important.
In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms, both curtailing the platforms’ capacity to engage in content moderation and requiring the platforms to give an individualized explanation to a user if they remove or alter the user’s posts. In the case Moody v. NetChoice (hereinafter: Moody), the Supreme Court evaluated whether Florida and Texas could restrict social media platforms’ ability to moderate content. The Court’s reasoning included references to a case from 1994 called Turner Broadcasting v. FCC (hereinafter: Turner I), which examined government-imposed obligations on cable operators.
The purpose of this blog text is to first shortly examine Turner I, discussing what it was about and analyzing the legal reasoning behind it, followed by an analysis on how Turner I was referenced in Justice Kagan’s opinion in Moody.
In Turner I, cable operators challenged the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992, arguing that forcing them to carry local broadcast stations violated their First Amendment rights. The Supreme Court ruled that the must-carry provisions were content-neutral and therefore subject to intermediate scrutiny rather than strict scrutiny. The Court reasoned that the must-carry rules did not target specific viewpoints but instead served three interrelated interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming.
Justice Kagan used Turner I in Moody to support her argumentation on whether Florida and Texas could restrict social media platforms’ ability to moderate content. Kagan cited Turner I to reinforce the principle that social media platforms engage in editorial discretion, much like cable operators when selecting which stations to carry. Kagan argued that just as the must-carry rules in Turner I interfered with cable operators’ editorial discretion by forcing them to carry channels they would not have chosen, the Florida and Texas laws similarly interfered with platforms’ ability to decide what speech to host.
Kagan rejected Texas’ argument that Turner I supported its content-moderation laws, explaining that Turner I upheld the must-carry rules not to balance expressive content but rather to save the local-broadcast industry, so that it could continue to serve households without cable. The government’s interest in Turner I was based on competition policy, aimed at limiting the monopolistic gatekeeping power of cable operators to ensure the survival of broadcasters, rather than an attempt to alter speech. In contrast, the laws in Moody were direct regulations on content-moderation policies, making them fundamentally different from the must-carry rules upheld in Turner I.
While the must-carry rules in Turner I aimed to protect market competition, the Florida and Texas laws in Moodyimproperly restricted platforms’ editorial discretion. However, Justice Kagan’s use of Turner I in Moody shows that competition concerns could justify must-carry regulation on tech platforms.
Team Moody